Bangga v Vanuatu Broadcasting and Television Corporation [2008] VUSC 1; Civil Case 153 of 2006 (6 February 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 153 of 2006

BETWEEN:

RODNEY BANGGA
Claimant

AND:

VANUATU BROADCASTING AND TELEVISION CORPORATION
Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Toa for Claimant
No appearance for Defendant

Date of Hearing: 7th November 2007
Date of Decision: 6th February 2008

RESERVED JUDGMENT

Introduction

1. This is a claim for unlawful termination of the Claimant’s employment as a manager by the Defendant.
   

History of the Proceeding

2. The Defendant filed a Defence but has not complied with orders to file evidence in support of its Defence and in fact has taken no part in the proceeding since some time prior to April 2007. The claim went to trial on an unopposed basis pursuant to R. 12.9(1)(c ).
   
3. On the date of the trial, only the Claimant himself appeared. His counsel, Mr. Toa, was in hospital. Because the matter was undefended, the Claimant was happy to go on with the trial by formally presenting his evidence which consisted solely of his sworn statement dated 16 May 2007. The Court reserved its judgment and directed that counsel for the Claimant was to file written submissions relating to proof of the elements of the cause of action and the quantum of damages. These have now been received.
   

Facts

4. The Claimant commenced employment with the Defendant in the position of Manager Finance, Administration and Human Resources on 1 December 2004. He was then aged 50 and had had considerable qualifications and work experience in business administration, within both the Public Service and private organizations.
   
5. The Claimant quickly ran into problems. On January 13 2005, he received a written note from the General Manager, Jonas Cullwick, headed "CAUTION AGAINST BEING SEEN TO BE TAKING OVER THE ROLES OF THE GENERAL MANAGER". There followed an extraordinary saga of erratic, arbitrary and unreasonable behaviour towards the Claimant. Although it is his final termination on 11 October 2005 which must be the focus of inquiry, the lead-up to it is also relevant.
   
6. On February 8 2005, the Claimant received a further memo from the General Manager setting out his concern about certain staff matters which had allegedly not been dealt with. Then on February 25, he received a letter from the General Manager stating that the General Manager had terminated his employment as of that day, allegedly on the grounds that the Claimant was scheming to replace him. There is no evidence that he was given any opportunity to answer this allegation.
   
7. The Claimant did not accept the purported termination as it was not effected by the Board. However, on 7 March he received a further letter from the General Manager informing him that at its meeting on 3 March, the Board resolved to reinstate him to his position but to suspend him on half pay for two months effective from 7 March. He was also informed that after the two months suspension was over, he would recommence work but would be demoted to the position of Manager, Finance and Human Resources at a reduced salary. He was banned from entering the Defendant’s offices during the period of suspension.
   
8. Although the Claimant had made a written response to his termination letter, there is no evidence that he was given any opportunity to be heard by the Board before it suspended him, nor even given notice of what misconduct or failings were alleged against him.
   
9. On 6 May 2005, he was advised in a memorandum from the General Manager that his suspension had been lengthened by another two weeks. No explanation was given.
   
10. Then on 16 May, he received from the General Manager a written "SUMMONS TO APPEAR BEFORE VBTC BOARD OF DIRECTORS" on 17 May to answer to charges against him. What the charges were was not specified. It is not entirely clear but it seems from the evidence that the Claimant did not comply with the "summons".
    

11. Then on 30 May, the Claimant was summoned in writing to an urgent meeting with the General Manager that day. It was about a proposed transfer of the Claimant to Luganville. After the meeting, the Claimant wrote a respectful letter to the General Manager which asked that as a first step, he be reinstated but also indicating that he would be prepared to consider the transfer on proper terms and conditions.

12. Then on the evening of 30 May, he received a written summons from the General Manager to a Board Meeting starting at midday the next day, 31 May "to answer to charges against you". The charges were not specified. The Claimant did attend but his sworn statement does not describe what happened at the meeting.

13. The next day, 1 June, he received a memo from the General Manager confirming the Board’s decision to reinstate him but to the position of Finance Manager effective from that day. The positions of Administration and Human Resource Manager were removed to the responsibility of the General Manager. The salary was reduced from his original salary. In addition, he was told that he would begin with a further 2 month probationary period.
    
14. Then, again apparently without consultation, he received a memo dated 1 August from, the General Manager informing him that the Board had now decided to transfer him to Manager of Administration and Human Resources because the workload was too much for the General Manager. Although he was told this move "should technically be viewed as a promotion", his salary was to stay the same, and yet again, he was put on a 3 month probationary period.
    
15. He did write to the Chairman of the Board on 2 August requesting a substantial increase in salary as a result of the transfer and complaining about being placed yet again on probation. No direct response was received except that on 16 August the Board made his appointment permanent which meant he was entitled to Housing Allowance and any other applicable allowances. The appointment was not for a fixed term.
    
16. Finally, he received yet another memo dated 10 October from the General Manager which is set out in full below:
    

SUSPENSION

I wish to point out a mounting concern that a string of recent issues affecting VBTC have pointed to poor leadership and failure on your part to act decisively as head of a vital service department of the Corporation. These issues include:

1) Failure to ensure the staff salary last Friday was paid on time without having to only resort to the Government grant. The Corporation’s Budget is very clear on target income generation requirements.

2) The telephone service was cut for 24 hours last week due to non-payment of bills.

3) The CCTV-9 at Lakatoro, Malekula was switched off for 5 days – from Friday September 30 to Wednesday October 3 – because VBTC was slow to complete installation of the cooling system for the transmission shelter.

4) Delay in settling staff Independence Anniversary Silver Jubilee celebration allowance.

5) Slowness to carry out instructions for advertisements of vacancies. The advertisement for a Handyman has not yet started, and we’re into the second week of the deadline.

6) Slowness in providing documents regarding the issue of the VT 14- Million paid to some current and former staff of VBTC in 2004.

7) Reports that you discussed the matter of the Government grant to VBTC without the consent of the Board.

The fact that six of the seven above situations occurred cannot be denied. And what is serious is that these incidents highlight ineffectiveness and incompetence in carrying out the duties of the Manager for Administration and Human Resources.

I am therefore placed in an extremely difficult situation where I regret that I have to place you on suspension from duties under the Staff Manual Section 14.(1) (c ) on full pay until the matter goes before the Board of Directors meeting. Your suspension is effective from today, Monday, October 10.

While on suspension you are prohibited from entering any VBTC premises unless otherwise authorized by the General Manager

17. The Claimant responded to the allegations against him in a handwritten letter to the General Manager dated 11 October. His letter addressed each of the 7 allegations specifically in clear terms. In relation to Points 1, 2 and 4, he stated that these matters were the responsibility of the Manager, Finance. In relation to Point 3, he said that it was a technical issue which was the responsibility of the Technical Manager and the Finance Manager. With regard to Point 5, he stated that the vacancies were advertised the previous week and there was no provision in the plan for a handyman. As to Point 6, he said it was the responsibility of the General Manager himself, and as to Point 7 he said that he did not understand it.
    
18. He received a letter also dated 11 October from the General Manager informing him that the Board had terminated his appointment immediately for incompetence. The letter stated that the "charges against him" were (verbatim) the 7 matters listed in the letter of 10 October. There was no reference whatever to the responses which the Claimant had made to those charges or anything to indicate that the Board even considered them. The Claimant was given a final payment consisting of one month’s notice and leave entitlements.
    

Claimant’s Case

19. The Minute which the Court issued when it reserved its judgment asked that counsel for the Claimant file written submissions "relating to proof of the elements of the cause of action and the quantum of damages". Submissions were filed on 26 November 2007 but they are disappointing in terms of assistance to the Court. They amount to little more than a regurgitation of the statement of Claim and make no attempt to link the details of the Claim to the evidence. However, the Claimant’s own sworn statement does to some extent consist of legal submissions as to both liability and damages. (In that respect, it is bad practice and in breach of R 11.4). The Court has pieced together the Claimant’s case from all available sources as best it can.
    
20. The Claim alleges two unlawful terminations, the first on 25 February 2005 and the second on 11 October 2005. In respect of the latter, no particulars were given but in respect of the former, the following particulars were alleged:
    

a) there were no written charges filed against Mr. Bangga

b) There was no opportunity given by the General Manager for the Claimant to put and present his defence.

c) There was no opportunity given by the General Manager to the Claimant to call and examine and cross-examine other witnesses.

In the Claimant’s sworn statement he specifically refers to s. 50(4) of the Employment Act (Cap.160) and Section 14(3)(4) and (5) of the VBTC Staff Manual.

21. As to damages, the Claimant has claimed the following amounts:
    
    1. VT 5,000,000 for loss of reputation and credibility
    2. VT 5,000,000 for loss of trust and confidence upon the General Manager as superior and work colleague.
    100. VT 10,000,000 for "stress build up" relating to events prior to termination.
    4. VT 5,000,000 for loss of post and responsibilities of the Finance Manager position.
    5. VT 5,000,000 for loss of salaries and benefits of the post of Finance Manager,
    6. VT 5,000,000 for loss of all entitlements and benefits.
    7. VT 10,000,000 for loss of posts and responsibilities of the Administration and Human Resources Manager position.
    8. VT 10,000,000 for loss of salaries and benefits under the Administration and Human Resource Manager.
    9. VT 15,000,000 for loss of all entitlements and benefits under the Administration and Human Resources Manager position.
    10. VT 7,000,000 for personal injuries, being medical conditions said to be a consequence of his treatment by the Defendant.
        

While there are breakdowns of some of these sums in the submissions, there is no linkage made with the evidence.

Discussion – Liability

22. In its Defence, the Defendant denied the allegations relating to the 25 February 2005 termination and said that the termination was removed and the Claimant was reinstated but suspended. In relation to the final termination the Defendant denied that it was unlawful but failed to plead any legal justification for it. Further the Defendant failed to provide any evidence in support of its defence and did not even attend the trial.
    
23. In Government of Vanuatu v. Ephraim Mathias [2006] VUCA 7; CAC10/06 (1 June 2006), the Court of Appeal made it abundantly clear that an employer faced with a claim for unjustified dismissal has the onus of both pleading and proving justification for the dismissal. The Defendant in this case has failed to do either. That in itself is enough to establish liability.
    
24. Even if the Claimant had the onus of proving lack of justification for the dismissal, he has done that. The ground of dismissal given in the General Manager’s letter of 11 October was incompetence in work performance based on the 7 issues outlined in the suspension letter of the previous day. The Claimant answered each of those matters in a way which seems on the face of it perfectly adequate. At the very least, if the answers were inadequate, the Claimant deserved a response or explanation from the Defendant. He received neither. The termination letter of 11 October 2005 simply ignored the Claimant’s answers. The only conclusion the Court can draw is that the Board of the Defendant never saw the Claimant’s answers, or if it did, never properly considered them. That was unfair.
    
25. It was also high-handed and unfair to suspend the Claimant, allegedly for performance failures without prior warning or complaint about the specific issues complained of and then one day later to dismiss him. This is not even a case where serious misconduct in the normal meaning is alleged. At most, these were work performance issues, which could hardly justify the extreme sanction of summary dismissal. I have no doubt that the Claimant was wrongfully dismissed.
    

Damages

26. The sums claimed for damages are grossly inflated and totally unrealistic. They total over VT 70,000,000 in the context of the loss of a position which was for an unspecified period terminable on notice and which the Claimant had held for less than a year and which paid a salary of a bit under VT 1,500,000 a year. Some of the categories of damages claimed are simply not available on a claim for unjustified dismissal. A case is not strengthened by claiming ridiculous sums in damages. Indeed, such demands, if anything, damage the credibility of the claim overall.
    
27. I do not think that damages can be approached on the basis that there are two unjustified dismissal claims, one at 25 February and one 11 October 2005. However unjustified the actions of the Defendant were in February, the Claimant accepted them by accepting reduced responsibilities and salary and then confirmed that in August by accepting the permanent position of manager, Administration and Human Resources.
    
28. Damages in wrongful dismissal cases are for breach of the contract of employment and the type of damages available are well-established and were discussed by the Court of Appeal in Vanuatu Maritime Authority v. Bani Timbaci [2005] VUCA 19, CAC 24 of 2005 (18 November 2005).
    
29. The first head of damage is for remuneration which the Claimant would have received if there had been no breach of the contract by wrongful dismissal. This was a contract of employment for an unspecified time so the appropriate period is the length of notice of termination which should have been given. Pursuant to Section 16.4 of the VBTC Staff Manual (which is incorporated in the contract of employment) where an officer is placed in category 10 or higher (as the Claimant was), he must be given 3 months notice or payment in lieu thereof. The Claimant received one month’s pay and is therefore entitled to another two months amounting to VT211,680. He is also entitled to another two months housing allowance at VT 20,000 per month.
    
30. A severance allowance is not payable because the Claimant had not been in the continuous employment of the Defendant for 12 months or more: s. 54 (1) Employment Act. Thus there is no room for an increased amount of severance pay for unjustified dismissal under s. 56(4).
    
31. I am also satisfied that an award of common law damages is amply justified for loss of reputation, distress and humiliation suffered by the Claimant as a result of the manner of his dismissal. It was arbitrary, high-handed and unfair. That conduct was against the background of a continuing history of capricious and overbearing treatment of the Claimant.
    
32. In VMA v. Timbaci the Court of Appeal reduced the trial judge’s award of VT 750,000 under this head to VT 50,000, describing the original award as "on the high side" and referring to the award of VT 30,000 to the employee by the Court of Appeal in Melcoffee Sawmill Limited v. George [2003] VUCA 24; CAC 18 of 2003 (7 November 2003). Then in Ephraim Mathias v. Government of Vanuatu [2006] VUSC 28; CC 200 of 2004 (3 March 2006), the same trial judge awarded VT 50,000 stating that the Court of Appeal in Timbaci had held that general damages for unjustified dismissal distress and humiliation should be VT 50,000.
    
33. With respect, I do not consider that the Court of Appeal in Timbaci was intending to fix a standard figure. Nor do I consider that the Court of Appeal said in Melcoffee that awards should be nominal (as was stated in Ephraim Mathias). Obviously each case will be different and values vary over time. I consider that the Claimant in this case was entitled to and did feel considerable stress and humiliation. I consider that an award of VT 200,000 under this head is justified.
    
34. This exhausts the categories of recovery available to the Claimant. He also claims for damages for personal injury by way of developing a heart condition and Wolf-Parkinson White Syndrome as an alleged result of his treatment by the Defendant. Any such claim would have to be by way of a separate claim in tort. In order for it to succeed, the Claimant would need to produce vastly better evidence than that produced in this claim which is mostly inadmissible hearsay. Direct expert medical evidence would be required in order to prove that the medical conditions had been caused or made worse by the Defendant’s actions. As well, such a claim in tort would raise a number of difficult issues relating to the existence and breach of a duty of care, foreseeability of damage and the like.
    
35. In summary, the Claimant will have judgment for the following sums:
    

a) Salary in lieu of notice (Including housing allowance)	VT 251,680
b) Common law damages for loss of reputation, distress and humiliation	VT 200,000
	VT 451,680

37. The Claimant is also entitled to costs to be taxed if not agreed upon.

Dated at Port Vila, this 6th day of February, 2008

BY THE COURT

C.N. TUOHY
Judge